Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (made on 26
October 2009 at Chesterfield under reference 031/07/01859) involved the making
of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i)
of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the
First-tier Tribunal (Social Entitlement Chamber).
DIRECTIONS:
A.
The tribunal may consist of the same members who sat on 26 October 2009.
If that is not possible within a reasonable time, it must be constituted by
different members.
B.
If the tribunal is constituted as before, it need only deal with the
additional issues identified in paragraphs 16, 17 and 18 of this decision.
C.
If the tribunal is differently constituted, it must undertake a complete
reconsideration of the issues that are raised by the appeal and, subject to the
tribunal’s discretion under section 20(7)(a) of the Child Support Act 1991, any
other issues that merit consideration.
D.
In either case, so long as the tribunal deals with the case as a
revision, it must not take account of circumstances that were not obtaining at 2
March 2004: see section 20(7)(b) of the Child Support Act 1991 and R (CS)
1/03. If the tribunal substitutes a supersession for a revision, it must
not consider circumstances that were not obtaining as at the end of June 2007. Either
way, later evidence is admissible, provided that it relates to the time of the
decision: R(DLA) 2 and 3/01.
E.
The absent parent’s solicitors have made a number of complaints about
the late production of papers and the previous need for an adjournment. The
First-tier Tribunal will need to consider setting a timetable for production of
evidence ahead of the rehearing.
Reasons
for Decision
A.
The parties
1.
This appeal concerns the child support payable in respect of Alexandra.
Her mother is the appellant and her father is the second respondent. They are
her parent with care and absent parent under the child support legislation;
that is how I refer to them in this decision. The first respondent is the Child
Maintenance and Enforcement Commission, which I refer to as the Commission.
B.
The appeal
2.
The appeal was brought with the permission of the First-tier Tribunal.
All the parties have made observations. The Commission has been represented by
Ms S A Powell and the absent parent by Forshaws, Davies, Ridgway LLP
solicitors. The parent with care has represented herself.
C.
History and background
3.
I am grateful to Ms Powell for her history of the case at pages 1056 to
1058 and for her supporting documents. Much is unknown, as not all documents
are available. It is clear that the first assessment was made in March 1997
(page 1066) and that the case is still governed by the child support scheme that
came into force in 1993 rather than the amended scheme that came into force in
2003. The key events are as follows.
4.
On 12 June 2002, the absent parent reported that he was ‘still
unemployed’ (page 1035). He told the parent with care around the same time
(page 1053). He was currently liable to pay £106.67 a week (page 1066). His report
was considered as an application for a supersession on a change of
circumstances, but it was refused on 17 August 2002 (page 1064). I do not know
why.
5.
On 19 August 2002, the absent parent repeated that he was unemployed
(pages 1064-1065).
6.
The parent with care then initiated a supersession. This led on 9 July
2003 to an increase in the absent parent’s liability to £136.89 from the
effective date of 7 June 2002 (page 1066).
7.
On 2 March 2004, this was reduced to nil from the effective date of 16
August 2002 (pages 1066 and 1067).
8.
The parent with care then did three things.
·
She exercised her right of appeal against the decision of 2 March
2004. I do not know on what date. The appeal was considered by a tribunal on 10
April 2007 and referred to the decision-maker (page 957). This led to a
decision-making process that was conducted on 26 and 27 June 2007 (page 1066).
The outcome was re-issued to the absent parent on 1 August 2007 (pages 4, 66
and 978). The decision-maker calculated the absent parent’s liability at
£145.34 a week. However, that did not satisfy the £10 tolerance that was
necessary to change the previous assessment of £136.89, which had been his
liability since 7 June 2002. Accordingly, that assessment continued unchanged.
This caused the appeal of March 2004 to lapse (page 1007). However, on 6
November 2007, the parent with care exercised her right of appeal against the
June 2007 decision and it was accepted out of time (pages 67 to 69). This is the
appeal that is now before me.
·
On 11 March 2004, she asked for a form to apply for a departure
direction (page 1068). On 12 September 2005, her application was refused (pages
998-1000). She exercised her right of appeal on 8 October 2005 (page 1069). The
appeal was dismissed on 23 July 2007 (page 1018).
·
On 15 March 2004, there is a record that she would be applying
for a revision (page 1068). I come back to this in paragraph 10.
9.
On 16 August 2005, a decision was made, on the absent parent’s
initiative, but it did not affect the nil assessment (page 1066). The parent
with care exercised her right of appeal against this decision on 10 October
2005. Her appeal was out of time, but was accepted (page 1070). Ms Powell is
wrong to say that this appeal was against the decision made on 4 October 2005
(page 1057); that is clear from the record on page 1070. It must have lapsed
when the decisions were made in June 2007.
10.
Meanwhile on 4 October 2005, the parent with care’s application for a
supersession was refused from the effective date of 3 June 2005 (page 1066). I
do not know how that relates to the possible application for a revision
mentioned on page 1068. Perhaps, and this is just speculation, the information
provided by the parent with care was relevant to a supersession rather than a
revision. I suspect that the reference to revision in the records was the
officer’s description rather than the parent with care’s. Whatever the
explanation, the absent parent’s liability remained at nil. This decision was
replaced by the decisions made in June 2007.
D.
The decision under appeal
11.
The decision that led to the appeal was made in June 2007. However, it
revised the decision of 2 March 2004. It is important that the appeal was brought
against the original decision as revised. Section 20(7)(b) of the Child Support
Act 1991 provides that a tribunal may not take account of circumstances that
were not obtaining at the time of the decision under appeal. In the case of a
revised decision, the relevant time is when the original decision was made, not
when it was revised: see my decision in R(CS) 1/03.
E.
The correct legislation
12.
Revision is governed by section 16 of the Child Support Act 1991. The
circumstances in which a decision may be revised are set out in Regulations.
The tribunal applied regulation 3A of the Social Security and Child Support
(Decisions and Appeals) Regulations 1999. That was wrong. They apply to the
2003 scheme, not to the 1993 scheme. Cases within the 1993 scheme are governed
by regulation 17 of the Child Support (Maintenance Assessment Procedure)
Regulations 1992. That regulation is set out on page 1059. The tribunal’s use
of the wrong legislation did not affect its decision, as the provisions are the
same.
F.
The misrepresentation/failure to disclose issue
13.
The decision-maker decided that the absent parent had either
misrepresented or failed to disclose his income in 2004. That allowed a
revision under regulation 17(1)(d). The First-tier Tribunal decided that, in
view of the lack of documents, the Commission could not establish that case. How
could it prove what he had done or failed to do, when the contemporaneous
evidence did not exist to establish either? I can find no error of law in the
tribunal’s reasoning on this narrow issue. I explain later why it should not have
stopped where it did.
14.
The parent with care, when applying for permission and on lodging her
appeal to the Upper Tribunal, commented that she had additional evidence. In so
far as that evidence was before the First-tier Tribunal, I have said that the tribunal’s
approach on that evidence was legally impeccable. In so far as that evidence
was not before the First-tier Tribunal, I cannot take it into account. I have
to decide if the tribunal went wrong in law on the evidence before it.
G.
Official error
15.
In my provisional comments on the appeal, I wondered whether the
tribunal should have considered official error as a possible ground for
revision under regulation 17(1)(c). Ms Powell has not commented on this
suggestion, but the absent parent’s solicitors have. Their arguments relate to
finality, which are not in point in the statutory structure of the child
support scheme.
16.
The tribunal drew attention to the evidence that the absent parent had
£80,000 a year income in 2004. That is both what he put on his mortgage
application form (page 585) and what the bank manager stated and certified as
his income (page 579). In view of its evident concern about the absent parent’s
income, it should not have left the case where it did. What it should have done
was to decide as a matter of fact what income the absent parent had in 2004. It
may then have found that there were only two possibilities: (i) the
absent parent had misrepresented or failed to disclose that income or (ii) the
decision-maker had made an official error. This approach only works if the tribunal
is first persuaded that the absent parent’s income was higher than the
decision-maker believed in 2004. But if that is so, it is possible that the
tribunal did not need to decide whether the proper ground for revision was
regulation 17(1)(c) or (d). It may have been satisfied that one or other must
have been the case; either would justify a revision. I have directed a
rehearing for the tribunal to consider this possibility.
17.
I also draw the tribunal’s attention to Ms Powell’s points in paragraphs
12 and 13 on page 1062. It is possible that there may be some official error in
respect of those matters, although that would depend on the information
available to the decision-maker at the time.
H.
Supersession
18.
The tribunal also went wrong by failing to consider making a
supersession in substitution for a revision. That is permissible under the
authority of R(IB) 2/04. This would release the tribunal from
considering matters as of 2004. It could then consider any change of circumstances
that had occurred since then, subject of course to the provisions governing the
effective date of any assessment. Ms Powell’s points in paragraphs 12 and 13 on
page 1062 may also be considered on supersession.
I.
Regulation 17(1)(f)
19.
Ms Powell has suggested that the tribunal could have used the power of
revision in regulation 17(1)(f). Surprisingly, that provision was not amended
to reflect the changes made on 3 November 2008 when the First-tier Tribunal
came into existence. That aside, I do not accept that the tribunal can apply
this provision. The suggestion is an ingenious one, but the provision was only intended
to be used by the decision-maker while an appeal is pending. It is not intended
to be used by the tribunal in the course of an appeal. Moreover, there is a
logical difficulty: the tribunal’s decision to use the power would determine
the appeal and thereby remove its power to do so.
J.
Disposal
20.
The absent parent’s solicitors have asked for an oral hearing. I
consider that that is best held before the First-tier Tribunal, as the only
matters that will benefit from the hearing are ones relating to the facts. The
legal issues have been explored sufficiently at this level in the written
submissions. I have accordingly given directions for a rehearing, including the
constitution of the tribunal.
Signed on original
on 12 August 2010
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Edward Jacobs
Upper Tribunal Judge
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